HH: I want to start with the big news from yesterday, that President Obama has reopened the door, opened the door to the prosecution of former Bush administration officials in connection to the interrogation memos. What’s your reaction to that, Governor?

MR: Well, it’s a bad decision on a number of fronts. First of all, it violates his most consistent campaign pledge that he was going to work on a bipartisan basis in Washington. There’s nothing that could be more hostile than saying we’re going to go after the prior administration and see if we can make them all get lawyers and pay millions of dollars in legal fees, and drag them in for hearings, and see if we can really demonize the prior administration. That’s the lowest form of partisanship, and it’s something which I think the American people will recognize was very different than what they heard during the campaign. And secondly, these matters that are related to protecting our country from terrorism, you know, I think the Democrats are making a mistake by calling this into question. President Bush informed members of Congress as to the policies that were being pursued. There was a national emergency, America was kept safe during the Bush years. I think Barack Obama’s leading with his chin on this, because you know what? He’s got to keep this country safe.

Here is Andrew McCarthy, who successfully prosecuted the terrorists behind the first World Trade Center attack, from yesterday’s program:

HH: [Y]our legal analysis of whether or not at any time until the present the use of waterboarding has been illegal in the United States. Let’s start there, Andrew McCarthy.

AM: I think the use of waterboarding has never been illegal in the United States. No prosecutor who was a competent, professional prosecutor doing a non-politicized case would indict a waterboarding case, because there’s not enough certainty that it’s actually been illegal. And in fact, I think the better of the argument is that it hasn’t been illegal.

HH: Has Congress had ample opportunity to define waterboarding as illegal and it refused to do so, Andy?

AM: Yes, they absolutely have. In fact, it came up directly, the question came straight up in the Senate, and they voted it down, to add waterboarding. They also, Hugh, did, if you remember I think it was a couple of years ago, they did a major amendment to the War Crimes Statute. I believe it was in connection with the Military Commissions Act in ’06 where they clarified the atrocities that would be prosecutable for war crimes. They could certainly have added waterboarding. Everybody knew at that point that it was a controversial issue, and yet again, they ducked it.

HH: Is that probative at all, Andrew McCarthy, in a prosecutor’s assessment of guilt and innocence?

AM: Yeah, I think it absolutely is. Anything, Hugh, I think that goes to, particularly now we’re talking about potential prosecutions of Justice Department people, of lawyers, where I think the legal playing field is more relevant than it might be for the normal prosecution, anything that would go to the state of mind of anyone who you would potentially indict, because a war crime, generally speaking, is a specific intent crime. You have to really understand that you’re breaking the law and follow through anyway.

In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

“The briefer was specifically asked if the methods were tough enough,” said a U.S. official who witnessed the exchange.